A Study On The Dissolution Of Open-term Labor Contract

The labor contract law not only leads to a large-scale debate and the communication and counterbalance among the lawyers, but also make the center of gravity of the dismissal institutions of open-term labor contract transform from signing system to dismissal system. It is foreseeable that the dismissal institutions of open-term labor contract would play a key role during the following process of Chinese legislation, legal application and academic research. But the existing legislation and research results couldn't handle the complicated institution, because there are still so much need to be improved, the most important one is the mixed legislation of three different kinds of labor contracts, which brings a lot of inconvenience and uncertainty and hurts the dignity and operability of the legislation and the improvement of the efficiency of judicial application.Absorbing the reasonable elements of Law and Economics and Sociology of Law, the article starts a comparative study on typical countries'Labor legislation, trying to preliminarily construct Chinese dissolution institutions and Lifting system for open-term labor contract. The article is composed of six parts:The first part focuses on the research of the original features and rightful place, explaining the reasons of the mainstream position and major role of open-term labor contract in China, breaking the misunderstanding to the"no fixed period". On the basis of description and comparison among the developing rules of open-term labor contract legislation in China and foreign countries, looking back the situation of the expanding of labor contract before and after Chinese labor and employment system reform, the article indicates that there as six reasons leading to the dominant position of open-term labor contract at now and in the future, as follows: (1) constitutional protection to the fundamental human rights; (2) support of jurisprudence; (3) reasons coming from economic theory; (4) the rules of social evolution; (5) labor movements and labor reforms; (6) the situation of Chinese labor resources.The second part classifies the differences between the dissolution and termination of open-term labor contract, trying to eliminate the misunderstandings and misuses to the above two concepts both at theoretical research and legislation. Dissolution and termination are different from the birth date on the aspects of definition, nature and legal consequence, but there is a chaos situation in many countries including China. In fact, the dissolution of open-term labor contract is a legal behavior with the intention to terminate the contractual relationship. So the so called right to terminate labor contract is a misuse. And then, the conditions affiliate to the so called right to terminate shouldn't belong to the conditions to dissolute the open-term labor contract.The third part focuses the way to dissolute the open-term labor contract. On the on hand, it is necessary to seriously treat the Protocol to lift which is not forbidden by the law. It could be used before the enforcement of contract, and shouldn't be used if the contract is starting. On the other hand, the issue of the statutory lift should be well balanced. The right to dissolute open-term labor contract should equally grant to both parties of contract, but it couldn't be realized in nowadays China according to the fact.The fourth part exactly probes the important conditions to lift the open-term labor contract, rethink and criticize the existing legislation and come up with some suggestions: (1) the employer rules and regulations doesn't possess the attribute of legal institution, but we have to recognize it as quasi-legal institution, and we need to build a democratic formation mechanism to let workers take part in the making of employer rules and regulations; (2) adjust the legislation concerning dissolution and irritancy of open-term labor contract, because they are so different according to jurisprudence; (3) make clear the standards to judge whether the employee has the capacity to continue to work, and what are the standards to decide"can not competent"; (4) rationally treat workers'right of quitting, and put some restrictions to the right gradually.The fifth part concerns the workers'post-contractual rights and obligations. The old workers have the priority right to employment when the employer recruits again within a reasonable period. But it is necessary for the old workers to pay enough attention to the conditions and prescription. Otherwise, the priority right to employment without restrictions will lead to partial protection to the old workers and injustice to the new candidates. Besides, the obligations of Confidentiality and non-competence should have a reasonable boundary to lighten old workers'burden.The sixth part focuses on reasons and necessity to build different dissolution systems of open-term labor contract, fixed-term labor contract and labor contract for completion of specific works. And then come up with the embryonic ideas of rebuilding the dissolution system of open-term labor contract. The above three kinds of labor contracts possess different meanings, values and function. It is proper to construct different dissolution systems according to the different attributes of different labor contracts. As for open-term labor contract, generally, it will last for a comparatively long period and meaningful to both of employers and employees, so it is necessary to judge and decide the dissolution system for open-term labor contract. And for the other two labor contracts, it is reasonable to put more attention to efficiency, because it is difficult to behave if the price of dissolution is higher than that of the contract itself.The paper tries to make a breakthrough of the subjective criticism, collect more lessons from foreign countries'legislation as far as possible, bring up a improvement plan based on the possible least cost with the aim to gain a better effect, within which includes observation to the key ideas of legal economics and legal sociology. This is also the biggest characteristic of the paper. The existing doctrines concerning the study on the dismissal institutions of open-term labor contract ignore that the refinement of legislation is a complicated social project, especially for the sensitive institutions.There are seven theoretical innovations in the paper: firstly, the open-term labor contract should be the common form of labor contract; secondly, the three different kinds of labor contracts need to be dealt with different dismissal institutions; thirdly, the existing legislation is mainly made for the open-term labor contract; fourthly, the right to dismiss the open-term labor contract should be granted equally to both parties of the contract; fifthly, it is necessary to set the post contract rights and liabilities because of the particularity of the open-term labor contract; sixthly, it is proper to set up different kinds of dismissal institutions to different kinds of labor contracts.We could make some conclusions through a rational analysis, comparative research and theoretical probe in the paper: firstly, the open-term labor contract should be the common form of Chinese labor contract, which means the new signed labor contract usually is an open-term labor contract except there are some statutory provisions. This method will prevent the employers'intention to evade signing the open-term labor contract. It also will save a lot of judicial resources and improve institution of the lack of legal support to the labor relationship; secondly, the concepts dismissal and termination are different. The former one means a legal behavior and the later one is a legal effect, there are not parallel; thirdly, there are some misunderstandings and misuses among the employers, they usually regard the open-term labor contract as a contract couldn't be dissolved. And the misunderstandings and misuses lead to many conflicts between employers and employees. In fact, the open-term labor contract could be dissolved by three ways, but the three way still need to be improved; fourthly, the conditions of dissolving the open-term labor contracts need to be refined. The integration of the existing legislation will result to a situation that employers'and employees'rights could be protected equally; fifthly, the relationship between employers and employees wouldn't completely disappear after the end of the open-term labor contract. The employers and the employees still have some rights and obligations within s proper period. And the extension and the duration should be rationally regulated.